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The Constitution: A Love Story

When the 112th House of Representatives opened this past January with a reading of the United States Constitution, the intended political message was clear—the Republican Party was back to rescue the Constitution.

Less clear was what Constitution Republicans were vowing to save. The version they ordered read was, in fact, stripped of language the leadership considered “superseded by amendment,” even though those measures are still in the text. Some are embarrassing. The provisions protecting slavery, for example, call into question the infallibility of the Founding Fathers. Since one of the standard conservative talking points is that the “original intent” of the framers is an infallible guide to wisdom, the fallible parts were better left unmentioned.

As a matter of fact, the new majority was more eager to amend the Constitution than to read it. The reading of the censored Constitution actually took place on the second day of the House session. The leadership found time on the first day to introduce H.J. Res. 1, the latest and most radical iteration of the “balanced budget amendment,” which would make it all but impossible for any future Congress to raise taxes—thus gutting one of the central aims for which the Founders in Philadelphia wrote the document.

This story illustrates the paradox of right-wing “constitutionalism” in the 21st century: On the one hand, it proclaims its patriotic devotion to the document against unpatriotic progressives who want to “destroy” it. On the other, it is faintly embarrassed by what the framers wrote and openly contemptuous of what they achieved.

This strange double discourse became louder after the 2010 election, as conservative lawmakers in Virginia proposed an amendment permitting state legislatures to repeal federal statutes. It progressed to an eager call by right-wing academics for a constitutional convention to purify the Constitution of federal power. It bottomed out when Senate Minority Leader Mitch McConnell explained that a balanced-budget amendment is needed because the people can’t be trusted: “The Constitution must be amended to keep the government in check. We have tried persuasion. We have tried negotiations. We have tried elections. Nothing has worked.”

Doublethink will probably dominate the airwaves for the next year. Republican “constitutionalists” are to constitutional law what Hannibal Lecter is to surgery. Consider Rick Perry, the current presidential front-runner and a self-styled constitutional authority. In his book, Fed Up! Our Fight to Save America from Washington, he warns us that “since the dawn of the so-called Progressive movement over a century ago, liberals have used every tool at their disposal … to wage a gradual war on the Constitution.”

Rick Perry is here to save it. How? Well, first he wants to make sure that people stop reading the part that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States,” and with that, convince us there’s no warrant for federal spending for “health care, education, transportation, and countless other domestic programs”—including Social Security. Next in urgency is repealing the 16th Amendment (income tax) and the 17th Amendment (popular election of senators), which don’t belong in the Constitution because they were put there by the people “in a fit of populist rage.” Then, Perry has since made clear, we need the federal Marriage Amendment, to make sure that the “limited government” in Washington can regulate our intimate relations; next, perhaps, an amendment permitting Congress to overrule the Supreme Court; and, finally, “clarifying amendments” explaining that the Bill of Rights and the 14th Amendment don’t mean what they seem to say about separation of church and state, protection from execution without due process, the right to vote, or equal protection of the laws.

In short, Perry, like many of today’s “constitutionalists,” loves the Constitution to death. It is ingenuous, however, that Perry admits that amendment may be necessary; conservatives of the Ron Paul/Michele Bachmann stripe insist that the Constitution already contains Christian-libertarianism hidden between the lines in a da Vinci–coded “original intent.”

These figures represent a movement that wants to change our form of government, making it radically less democratic and producing an enfeebled “night-watchman state.” They want to do this either by rewriting our charter or, more likely, by proclaiming that it has always contained this toxic mix of the Articles of Confederation, Ayn Rand gibberish, and fairy-tale history.

Given this challenge, one would think that progressives would flock to the banner of the Constitution. This is a fight we can win, after all; last I checked, the Constitution was reasonably popular. We have to be willing to fight the battle, though. Needless to say, President Obama has not uttered a full-throated refutation of the right’s claims, but few figures on the progressive side of the spectrum have, either.

That’s where our own double consciousness kicks in. Earlier this year, I published an essay challenging the right’s assault on the Constitution. “Ordinary Americans love the Constitution at least as much as far-right ideologues,” I wrote. “It’s time to take it back.” Sanford Levinson of the University of Texas, the unchallenged doyen of constitutional law, immediately responded. The current Constitution, he wrote, is basically bantha fodder—undemocratic, unwieldy, and irredeemably tainted by slavery—and needs to be replaced. “I very definitely do not love the Constitution, and I don’t think that anyone else should either, except those who benefit from the status quo,” he wrote. “Otherwise, we’re all like deluded spouses who accept being battered as simply part of what the trials and tribulations of marriage/politics are all about.”

Are those of us who still admire the best features of our constitutional history, and hope for a better future, like battered spouses? Family metaphors can never be precise. They are not, in fact, even political in the way the debate over health care or the makeup of the Senate is. They are powerful because they touch our deepest joys and sorrows. The pain and injustice of family life—no matter how happy the family—are the true headwaters of political passion. To Levinson, the Constitution is an intimate abuser; no wonder he wants to close the door on it forever.

In the family constellation I carry in my heart, the Constitution is not and never has been abusive. It is neither an idol nor a love object to whose flaws I am blind. At times it is like my Uncle George, who used to give me a quarter after church, tousle my hair, and tell me to run along. Other times it is like Uncle Jack, who was pretty much all right until he had two drinks and began singing the VMI fight song. At times it is more like my Cousin Bill, who claimed to be a Costa Rican colonel, sometimes wore a lightning-striped toupee, and put his pet chipmunk down Cousin Chicky’s bridal gown at the wedding reception. At times it surely has retarded political goals I think should have been won, blunting social change that might improve the lives of those I love.

That is not all the Constitution has done for me. It is not even the most important thing. For I believe the Constitution saved, if not my life, at least its promise and the promise of the lives of those among whom I grew up. In a moment of great need, the Constitution—belatedly, even reluctantly, but nonetheless decisively—came to my rescue. As a result, I have my own passions about the Constitution. It may be a strange parent, but it is not an abusive one.

My story is not unique to me. It is the story of one region and two races that, not long ago, lived in a place where the Constitution did not apply. This was once vivid in the public mind, seared in place by televised images of dogs biting helpless women and fire hoses knocking down children. It is fading. Some who witnessed it have died; others have forgotten; and some have always stood ready to deny the depth of the evil that was overcome and the scope of the victory that was won.

“I just don’t remember it as being that bad,” Mississippi Governor Haley Barbour recently said about segregation. Haley Barbour and I are of the same generation, and, like him, I was a designated beneficiary of the segregated system. I remember it vividly.

Understand what segregation was: a radical new system locked in place between 1890 and 1912 to contain the forces of democracy and separate the South from the rest of the nation. It was not an antiquated vestige of the old slave South—something Southerners just forgot to clean up after the Civil War—but a modern, thoroughgoing racial dictatorship as oppressive as South African apartheid.

The separate drinking fountains and restrooms, while horrible, were the least of that system’s effects. The heart of the system was not enforced separation of the races but systematic, violent subordination of one to the other. Black citizens in the South were excluded from public life; they were denied the vote; they held no offices; they were given only limited access to the courts; they were economically exploited by whites under the color of law. Official violence maintained white supremacy, and if that failed, extralegal violence was also waiting—and law enforcement often made no effort to stop violence and even murder when it was directed against black people.

The system oppressed both black and white—not equally, but it oppressed both nonetheless. I grew up in a genteel part of a relatively civilized state of the Old South, but even so, the threat of racial violence was always in the air. We didn’t talk about it much, but all of us, black and white, knew it was there. No one, white or black, was allowed to question the “system”; those who did ran enormous risks. Dissent—white or black—could mean social ostracism, economic ruin, or physical danger. As in any dictatorship, the education I received at my segregated school was systematically shaped to reinforce the official racist ideology. Public officials, government sources, and the local news media ceaselessly repeated the official propaganda message, which was (as my hometown editor, James J. Kilpatrick, wrote in 1962), “From the dawn of civilization to the middle of the twentieth century, the Negro race, as a race, has contributed no more than a few grains of sand to the enduring monuments of mankind.”

Few people or institutions defied the system; some worked around it to inject some humanity into daily life. Many whites were what we called “decent folk.” My family fell into this category. My parents were people of powerful goodwill who in their public lives modeled tolerance and kindness and who, by the time they died, had formed deep alliances across the color line. But in private, for years, our family lived a life defined by racial separation—our church, our schools, our clubs, our jobs—and when white peers spoke in ways that “decent folk” did not, we lacked the vocabulary to rebuke them. I can recall the long lectures my grade-school teachers delivered about the need to keep black people in their place and the mornings my father stopped to offer a ride to another lawyer (one who had been part of the defense team in Brown v. Board of Education), who subjected us to vulgar fulminations against n-----s and meddling Yankees who were making trouble for us all.

This fetid system was in place because those charged with guarding the Constitution winked at it. Southern whites, though, always knew that they were violating the nation’s fundamental law. “We have been very careful to obey the letter of the federal Constitution,” Senator Walter F. George of Georgia explained early in the 20th century. “But we have been very diligent in violating the spirit of such amendments and such statutes as would have a Negro to believe himself the equal of a white man.”

The Congress and the Supreme Court had allowed this charade to be carried forward: “separate but equal” jargon justifying grossly unequal institutions; “nonracial” literacy tests and poll taxes “coincidentally” producing all-white electorates; imaginary “states’ rights” smothering the textually guaranteed rights of free speech and equal protection. The old Confederate states were allowed to wall themselves off into separate suffocating satrapies that seemed, when I was a boy, destined to stand forever.

These safeguards of segregation were not features of the Constitution but perversions and defiance of it—conscious violations of the spirit, as Senator George so cheerfully confessed. They were locked in place by men who believed the Constitution was just words on paper. But those words on paper brought this system down.

I was born in 1950. When I was 4, the Supreme Court shocked the South with Brown v. Board of Education, which said, “In the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” When I was 5, the 26-year-old Martin Luther King Jr. told the Montgomery Improvement Association, “If we are wrong, the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.” When I was 9, college students in Greensboro, North Carolina, sat politely at a Woolworth’s lunch counter and demanded to be served. When I was 14, two-thirds of the members of the United States Senate broke a Southern filibuster and enacted the Civil Rights Act of 1964. When I was 15, Congress passed the Voting Rights Act of 1965. When I was 16, I worked as a volunteer in something many Southerners had for generations only dreamed about—a contested election in which people of both races could vote and the ruling party’s chosen candidate actually lost.

The Southern wall had crumbled. Many injustices remained; nonetheless, white and black, we were, ambiguously, free at last.

The Constitution did this for me. That may seem to some critics like a small respite in a history of abuse, but to me it was a gift of full membership in the national family. Governor Barbour may not want to remember, but I will never forget.

In the years since the walls came down, an industry of political scientists has grown up to explain that Brown v. Board really didn’t accomplish much. But, in this case, I was there. Brown did something remarkable. No longer could white Southerners ask, “How can we maintain our special system?” They had to—and they did—begin to ask, “Are we defying the Constitution?”

The next ten years were an extraordinary period: Everywhere I went as a boy, I found white people—young, old, lawyers, laypeople, Northern, Southern—arguing about the Constitution. Most of the people I knew were angrily asserting that segregation was constitutional, but after Brown, the idea of racial equality had jumped the color line and become a question whites could not ignore. When King in 1955 proclaimed, “If we are wrong, the Constitution of the United States is wrong,” whites were no longer laughing. Their inner certainty was shattered.

The greatest heroes of the civil-rights movement were the black Southerners, young and old, who hurled themselves against the wall of color. There was also another group of more ambiguous heroes—the federal judges of the South, whom author J.W. Peltason calls the “fifty-eight lonely men” of that era. Children of segregation (how could they have gotten to be judges otherwise?), they were charged by the Supreme Court with enforcing Brown and given little guidance on how to do so. The law and the Constitution made some (not all) of them, willingly or not, stewards of justice, imperfect but powerful. Eventually, men like John Minor Wisdom, J. Skelly Wright, Robert R. Merhige, and Frank M. Johnson Jr. achieved a kind of prophetic isolation; from that lonely place, they worked to transform the society that had spawned them.

I did not know King or John Lewis or Ella Baker, but I knew some federal judges, and I saw the price they paid to remain true to their oaths. (One told me of finding his dog on the lawn, its throat cut.) In the midst of great danger, often against their own inclination, they too became heroes—and to me, they remain so.

It is easy to claim that the civil-rights movement failed. The South didn’t become the “beloved community” of which King spoke, a democratic society where citizens are bound together not only by law but by mutual regard. Racial and social divisions scar our national life. Today’s South is too often governed by white thugs like Haley Barbour.

White college students complain that minority students “segregate” themselves in dining and residence halls. Former Justice Sandra Day O’Connor even described white voters, placed in a strange-shaped voting district that was “only” 45 percent white, as injured by “an effort to segregate the races.” Those who speak this way do not remember. Segregation was not partial separation but total exclusion; it was not social reticence but proscription enforced by violence; it was not flawed democracy but successful dictatorship; it was not whites being in a slight minority but blacks having no vote at all.

I still remember, and I remember that the Constitution, for all its flaws, played a major role in bringing me and the place where I grew up out of darkness and into membership in a democratic national society. It was not the Constitution alone—if provisions and amendments alone could have done it, then the 13th, 14th, and 15th Amendments would surely have brought the Jubilee. One factor in the decline of Southern resistance, however, was a sense of shared loyalty to the Constitution, one that was forged over generations. This “constitutional faith,” to use one of Levinson’s most memorable phrases, would not easily have been transferred to a new Constitution, no matter how cleverly designed by a current assembly of notables. Its absence would have reduced the struggle to naked force, with no underlying appeal to shared values.

It is the power of constitutional faith—the power to constrain us toward outcomes we may oppose or even fear—that I revere about the Constitution. The amended Constitution that exists on the page—the document I read—is for all its flaws and gerrymanders a progressive document, making the American states one nation, placing that nation under the governance of a Congress elected by the people, empowering that Congress to act for the common good, restraining states from blocking the common good for parochial reasons. That document, as amended, embodies the progressive ideas of human equality, of human dignity safeguarded by due process and “equal protection of the laws.”

The far right is now stealing the Constitution in plain sight. I don’t speak here of ordinary conservatives who may differ with me on the scope of the Commerce Power or the meaning of the 11th Amendment but of the Bachmanns, the Perrys, the Pauls (father and son). These charlatans are not being answered as they should be, in part because too many progressives see only the imperfection and shame in the Constitution’s history and blind themselves to the promise of its text.

Last year, on the 37th anniversary of the “March on Washington for Jobs and Freedom,” the National Mall was filled with participants in Glenn Beck’s “Restoring Honor” rally. I went to the Mall and stood among the marchers and heard them discussing the horrors of immigration, the “tyranny” of an elected Congress, the rapture of guns, the satanic evil of Barack Obama. I felt a profound disquiet, not least because I spoke to many of them individually and found that these were, by and large, lovely people, Americans from small towns who were, in my judgment, being led astray—fed lies about their history and their Constitution—by people who should know better.

To restore my soul, I left the march and walked to the National Museum of American History, on the north side of the Mall. In a second-floor exhibit hall, the museum displays the original lunch counter from the Woolworth’s store in Greensboro where the first sit-in occurred in 1960. That lunch counter—like the Liberty Bell, the Wesleyan Chapel in Seneca Falls, the wall atop Cemetery Ridge, Ford’s Theatre, and the Stonewall Inn—is an inescapable part of our constitutional heritage. These physical things tie the words on the Constitution’s page to our lives in a way that we could never reproduce even with the most brilliant new Constitution. These places and objects are outward and visible signs of the inward grace that constitutional faith can sometimes produce, of the transformative potential, present always in American history, of dry words on paper.

I stood in front of the lunch counter and thought of the poisonous twaddle being pushed on the Mall behind me. I think now of the corrosive agenda of the right wing, which in many ways is the same agenda the Constitution’s opponents have followed since 1787: sanctioned inequality, theocracy, localism, xenophobia, legalized exploitation. Today, their hostility masquerades as reverence. They dare to accuse patriots of treason; they demand obeisance to an imagined Constitution; they plot the destruction of the real one.

I made a vow: Let others dream of constitutional conventions. As for me and my house, we will serve this Constitution.

Typical left-wing tripe from the UB Law faculty. (I should know, I'm an alumn and I took Con Law, though not from Prof. Epps.)

While I agree that there is much for liberals to honor in the Constitution, yet another "liberals need to reclaim x from the GOP Bad Guys(TM)" article is pointless. The simple fact is that constitutionalists from the right are eating liberals' lunches on respecting the document. Sure, some nutjobs (Perry, Bachmann, etc.) misappropriate it for their pet ideologies, just as has been done by the left since time immemorial (the anti-gun folks being some of the most absurd, to say nothing of the Commerce Clause insanity of the FDR era).

The problem is that the history and plain text of the document are inconsistent with the left's current views on the federal government as a tool for societal engineering. Mention state sovereignty and the left laughs, yet it's clear throughout the document, most memorably in the 10th Amendment. Argue against federal criminal law and the view is treated as quaint and parochial by the left. Obamacare? Dodd-Frank? Sarbanes-Oxley? These sorts of regulation, well-meaning as they may be, are anathematic to the Constitution of the 18th century, and would remain so but for the strange Depression-era jurisprudence.

I agree that the left should revitalize its relationship with the Constitution; I just expect that they find the experience to be a bit more than they've bargained for.

"It’s time for liberals to reclaim our founding document from fanatics who worship its name but not its meaning."

Well, not to argue stream of blatant errors in this piece of trash, it's never been conservatives who suggest the Constitutions should be a 'living document', meaning its words should only mean what innerlecsul libbruls think it should say; meaning you think the Constitution should have no fixed meaning at all, just current libbrul PC desires.

I still remember your parodyof racism from your con law class at the U of Oregon law school when (as a whimsical illustration of racism having a kind of 'shooting yourself in your own foot' quality) you replaced racism with its sexist equivalent and drew a verbal picture of a bunch of old boys settin' out on the store porch reacting to the approach of a lady with a sneering 'we don't want your kind around here -- you git on over to wimmin-town.' Kind of an aside, I know, but reading this article reminded me of it. Still funny, though the underlying subject matter is not.

Actually, the text of the Militia Act of 1792 reads as follows: "That each and everyfree able-bodied white male citizen of the respective States, resident therein,who is or shall be of age of eighteen years, and under the age of forty-fiveyears (except as is herein after excepted) shall severally and respectively beenrolled in the militia, " It then goes on to list necessary minimum equipment, including a "firelock or musket (the assault weapons of the day)" and at least twenty rounds of ammunition. Penalties for those who presented themselves improperly equipped were also prescribed.

What part of "the right of the people to keep and bear arms shall not be infringed" do you not understand? It doesn't say "right of the militia," it clearly says "the people." These "people" are the same ones that also appear in other parts of the Constitution such as "We the People...", "...right of the people peaceably to assemble...", "...right of the people to be secure...", "...others retained by the people.", and the one that really seems to bother big-government types when they aren't pretending it doesn't exist "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The left and the right will fight over anything. Now it is who loves the Constitution the most. We all love the constitution and dwell on our favorite parts. It has been stretched or shrunk over the years to accommodate various inclinations.We are in trouble as a country now---liberals and conservatives. The finger pointing in Congress, and between Executive and Congress have brought the approval of both to very low levels.we need strong leadership that can get us thinking as "we" and not us vs. Them.If there is such a leader I wish they would stand up.

Whether your version of "right-wing" constitutionalism is an accurate reflection of reality or simply a way of demonizing your opponents, your article is filled with non-sequitors and illogical leaps. Exactly why desiring to amend the Constitution is evidence of hypocrisy in proclaiming an adherence to it escapes me. Many of us advocate amending the Constitution to reflect consensus on current public policy that lies outside the scope of its text. The right to have an abortion is not to be found anywhere in the document, for instance, but only in penumbras and emanations, which can mean anything to anybody capable of interpreting a Rorschach test. Instead, let's just amend that right into the Constitution and end the controversy. I actually love the Constitution enough to expect some integrity between it and the citizenry.

A terrifically effective article because it goes against the modern political grain to re-establish liberal fidelity to history. The liberal vision holds no immediate grip over the American imagination because of its impotent defense of the past and American heritage.

If Liberals and others in the contemporary Left want to reclaim the Constitution, they should of course start by reading it. Pay special attention to the first ten bits at the bottom called "Amendments". You'll sort of like #1, except for the religion part. Number two will probably upset you, but try to see it in the document's larger context as allowing the People to 'self-govern' by allowing them to protect themselves from each other, and from even the government itself.. (I know, this is hard..) Take a break for a while after these two, because you will probably be pretty overwhelmed. Leave yourself plenty of time to study #10 - it will probably be incomprehensible for you at first, and the one most likely to cause frustration and anger. Again.. try to keep in mind the 'crazy 18th century idea' that there are things in life that the Federal Government can not and should not control, hypothetically.

Mr. Epps, you say you like this constitution. Well this constitution has written in it a means to amend it. It has been amended many times. So which amendment do you have a problem with. The 13th the 14th, the 2nd. I know its fashionale to view the constitution as a living document. I agree with that view. It was made to be a living document by the provisions for amendment. So we can change it to suit our evolving society. It was not envisioned to be twisted and mangled by the politicians and judges. If we find it in our interest to limit government by forcing it live within our means. I have no problem with that. If it is a bad amendment we can repeal it just as we repealed prohibition. In my opinion the 16th amendment and the 17th amendment did more harm to our system of government than any balanced budget amendment ever could.

Intriguing-- you're taking the conservatives to task for reading the Constitution in its current form, i.e., the Constitution as it now is. Liberals, it seems, have always had something of a penchant for reading it as they wish it were....

I have very little patience with someone who believes it is Constitutional for the Federal government to take my money and give it to someone else because they say the other person needs it. Those of us who are "right-wing" and feel a fidelity to the Constitution remember the words of James Madison who said, on the floor of the House of Representatives, that "Charity is no part of the legislative duty of the government" as well as an even more damning statement "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." I do believe that Madison was slightly involved int the writing of the Constitution.

Also, Conservatives have no level of embarassment at all about the original, unamended text of the Constitution. the choice by the House of Representatives to read the amended text is and was the correct one as that is the document which exists today. The fact that slavery was not outlawed in 1787 when the Constituion was written was a mere bow to reality. They needed to get the acquiesence of enough states in order to form the new government and they would never have done so without those compromises in place. Many of them were ardently anti-slavery and wished to see it end nd hoped they had provided the mechnisms to do that once the nation was old enough to withstand that struggle.

The Seventeenth Amendment was a major mistake by the states. It completely altered the balance of power which had been more or less equal between the national and state governments towards one which the states could no longer effectively resist power grabs by the national government.

I will finish with the Separation of Church and State nonsense. Just because the Supreme Court seems to think that the Constitution somehow restricts any and all displays of any religious cinography or affiliation does not make it the truth. Nowhere in the Constitution does that phrase exist. the only reson that was added to the first amendment was so that the federal government would be unable to establish an official church of the United States. There was no idea that it would drive religion out of the public square. No less an authority than John Adams stated that our government was unfit for a people without religion. there were several states at the time of the Ratification of the Constitution and for years after which had state-sponsered religions. That is in fact what the Jefferson letter to the Danbury Baptists was addressing. He told them that the Constitution did not allow the national government to create a religioon which would replace the religion already in Pennsylvannia, not that no religion in government was allowed. That is a modern creation by those who are afraid of religion's implications in their lives.

There is no question that it is the conservatives who are the protectors of the Constitution's original intent. Any argument to the opposite would appear to be nothing other than laughable.

It is heard for liberals to reclaim the constitution. After all, there is no amendment that states: You have the right to welfare, you have the right to coerce money from others to support your lifestyle, you have the right to behave abysmally and blame others for your personal shortcomings.

ARTICLE I: You do not have the right to a new car, big screen TV, or any other form of wealth. More power to you if you can legally acquire them, but no one is guaranteeing anything.

ARTICLE II: You do not have the right to never be offended. This country is based on freedom, and that means freedom for everyone -- not just you! You may leave the room, turn the channel, express a different opinion, etc.; but the world is full of idiots, and probably always will be.

ARTICLE III: You do not have the right to be free from harm. If you stick a screwdriver in your eye, learn to be more careful, do not expect the tool manufacturer to make you and all your relatives independently wealthy.

ARTICLE IV: You do not have the right to free food and housing. Americans are the most charitable people to be found, and will gladly help anyone in need, but we are quickly growing weary of subsidizing generation after generation of professional couch potatoes who achieve nothing more than the creation of another generation of professional couch potatoes.

ARTICLE V: You do not have the right to free health care. That would be nice, but from the looks of public housing, we're just not interested in public health care.

ARTICLE VI: You do not have the right to physically harm other people. If you kidnap, rape, intentionally maim, or kill someone, don't be surprised if the rest of us want to see you fry in the electric chair.

ARTICLE VII: You do not have the right to the possessions of others. If you rob, cheat, or coerce away the goods or services of other citizens, don't be surprised if the rest of us get together and lock you away in a place where you still won't have the right to a big screen color TV or a life of leisure.

ARTICLE VIII: You do not have the right to a job. All of us sure want you to have a job, and will gladly help you along in hard times, but we expect you to take advantage of the opportunities of education and vocational training laid before you to make yourself useful.

ARTICLE IX: You do not have the right to happiness. Being an American means that you have the right to PURSUE happiness, which by the way, is a lot easier if you are unencumbered by an over abundance of idiotic laws created by those of you who were confused by the Bill of Rights.

Eww ! Please enlighten us Mr. Elitist liberal. You have many constitutional experts on your side such as Jesse Jackson Jr., Maxine Waters and just some plain ol' all around experts like Sheila Jackson Lee.

And if they still believe they are "the militia", kudos. The planes to Iraq and Afghanistan await them. If they don't want to be "the militia" then they don't have "gun rights". The clauses of the second amendment go together.

blah blah blah. Read the Consitution. It is exactly what it is right now. The provisions currently in force are all that are currently in force, the provisions that have been repealed are not. This knucklehead thinks the fact that McConnell thinks we need to amend the Constitution is somehow an affront to the framers. Is he so stupid as to not understand that the framers allowed for amending the Constitution in order to accomodate a changing world. We don't re-interpret the guiding document, we vote to amend it. What a putz. And the people who fall for this line? Beyond stupid.

Dude. What are you talking about? The last thing we liberals want is to reclaim the Constitution. It would mean the death of the great welfaretopia we have been constructing for these past seventy years.

Who wants to go back to the idea of natural rights when we have worked so hard to earn the right to other people's money. Redistribution is the wave of the future. Property rights are so 18th century.

Interesting article, Professor. Maybe someday our Constitution will rightfully be seen as not removing the subject of abortion from the democratic process. White/black, male/female, post-birth/pre-birth - all Americans should have the right to have their interests represented in the democratic process.

As a Law Proffesor you of all people should know that the Constitution represents a Union of States that was founded as a rebublic not a democracy. The Federal Government was originally created to do the will of the collected states in the form of defense, interstate Commerce and a common currency. Over the centuries but even more so in the last seventy five years the states have sadly lost to the federal government many rights that were bestowed upon it by the Constitution. Your Article complaining the need of liberals to save the constitution which most believe is "A Living Document" that should be changed to satisfy those who believe in a Socialist European centralised planned model of government is contemptoues at best. I believe the preamble to the constitution starts as "We the People" not as "We are the liberal elite and we know whats best for you". Liberals saving the Constitution ? I hope not. Eugene

"... first he wants to make sure that people stop reading the part that gives Congress the power 'to regulate Commerce with foreign Nations, and among the several States,' and with that, convince us there’s no warrant for federal spending for 'health care, education, transportation, and countless other domestic programs'—including Social Security..."---------------------------------First off, Perry's not my man. But his point is valid. As Madison, the Father of the Constitution put it:

"... The powers delegated by theproposed Constitution to the federal government are few and defined. Thosewhich are to remain in the State governments are numerous and indefinite. (Federal powers) will be exercised principally on external objects, as war, peace,negotiation and foreign commerce. The powers reserved to the several Stateswill extend to all the objects which in the ordinary course of affairs, concernthe lives and liberties, and properties of the people...” (Federalist 45)

Seems to me that health care, education, social security, et al., fall into the "states" category. They aren't "external" and they do "in the ordinary course of affairs, concern the lives ... of the people". The 10th Amendment says if it ain't among the enumerated powers (Article I, Section 8), then the federal government has no authority.

What an interesting point of view! Conservatives engage in doublethink because they see the text of the constitution as legally binding, unless the text is amended in the manner which the constitution provides. That is like saying newly elected legislators are engaging in policy doublethink if they go to Washington and attempt to change the laws of the land through new legislation. And you teach?...

Oh man, massive straw man alert. Conservatives believe in the infallibility of the founders? No, the most hardcore only of the right believe in Originalism which means ambiguity in the Constitution should be analyzed in light of the founders' intent since they after all wrote the thing. It's not infallible, but neither are current politicians.

Human reason started in the Kalahari dessert 90,000 years ago. It's been the Descent of Man since then. Garrett's being a professor shows how low standards have gotten. Soon we as a society will no longer tolerate petty bourgeois tyrants whether they are green or purple with pink polka dots. All Brown and the Great Society taught us is how inferior on average African natives have become. Maybe this is because they have the longest time since the Bushmen to suffer mental decay.

What would you say about the Administration's view of the Constitutionality of ObamaCare? Is this not a draconian attack on the Constitution? Is the Constitution really an article of political ownership or gain?

The greater attack is the limitation of representation by any means. Whether by segregation, or by the limitation of the number of representatives such that so many are represented by so few that realistically no representation exists.The greater attack is the pull of the middle class to always "tax the rich" who truthfully are never taxed. And through inflation pushing that middle class into the once rich category and taxing them to death. Yes, there are injustices. They're just not often evaluated by the persons on whom they are levied.Overreaching and overarching federal government that form the dictates of all seemingly powerless states much less local governments. Yes, this Rome is falling. We've been watching it fall for a very long time.

But this is what Eisenhower warned us of--the perils of an uneducated populus (poor schooling) and an unaware public (poor and misguided media). We have brought this on ourselves. We go to school to learn how to believe. We turn on the news to be entertained, frightened, but mostly to be marketed to (and how to believe).

So this country has perhaps already left democracy a long time ago. It is certainly no permanent form of government. Liberals and Conservatives use the Constitution to whatever aims they may choose. But a Liberal passes law, enforces law, and when faced with law appeals to a higher moral authority of his own choosing. A Conservative passes law, enforces law, and obeys law, and is rightly dismayed when the Liberal appeals to a higher moral authority.

"which would make it all but impossible for any future Congress to raise taxes—thus gutting one of the central aims for which the Founders in Philadelphia wrote the document." I don't have to read any more of this drivel. Are you serious? The Constitution was written so that Congress could raise taxes? Are you sure it wasn't written to lay out which powers lay inside the federal gov't and which do not? And, what would be so terrible about repealing the 17th amendment? This amendment only gives Washington more power. 'Progressives' are all for getting rid of the electoral college - when it serves their purposes. The 17th amendment ensures that states have less power. And don't quote hogwash about this is un-democratic. The voters in states elect state legislatures and would choose those who would pick Senators that would best represent them."In the family constellation I carry in my heart, the Constitution is not and never has been abusive." So, you would prefer the civil rights amendment had never been passed? "To restore my soul, I left the march and walked to the National Museum of American History..." Oh, by the way, the Southerners blocking it were from the Democratic Party.Being led astray is exclusive to conservatives, huh? Heal thyself.

Typical liberal apologetics that makes the commerce clause supreme while ignoring the 10th amendment and the CLEAR intent of the framers in what their words meant. The framers DID agree with the constitution being amended - but what liberals do is just "reinterpret" the words so that they don't need to be limited by them. Under a liberal, the constitution is just a quaint document, not an inhibitor of federal action - as pelosi already acknowledged.

tr. Winter Evening Tales xvi. 238 Even in the best regulated families some petty Quarrels will arise.In all of these examples regulation means "subject to rules or standards" more than just "qualified". In a military context usually used to distinguish professional/trained soldiers from untrained soldiers:1650

T. Fuller Pisgah-sight of Palestine iv. iii. 45

Fight they durst not, being a multitude of undisciplin'd people, of all ages and sexes, against a regulated army of their enemies.1690

London Gaz. No. 2568/3,

We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.1714

If Prof. Epps has not yet read Prof. Richard Epstein's book "How Progressives Rewrote the Constitution", he should now read it and then take another look at much of the patent nonsense in this article!

Yes they do. So if you are a citizen over 18 and own a firearm and know how to use it, you're a member of the militia. BTW the militia isn't called up to overseas. The very definition of militia is to protect home territory.

Only took Mr. Epps about a fourth of his essay to bring out the race card. Once seen, can't be unseen, they say. From that point on, conservatives are racist, the tea party is racist and any position counter to the author's is racist. Epps loses what little credibility his article had after about a thousand words.